MEDICAL PRIVILEGE IN CUSTODY-RELATED ACTIONS

October 26, 2010 § Leave a comment

Rule 503 of the Mississipi Rules of Evidence (MRE) sets out the familiar physician- and psychotherapist-patient privilege that has long been a part of our law.

Subsection (d) (4) was amended in 2004 to remove the privilege in certain proceedings related to child custody.  The rule states:

There is no privilege under this rule for communications, including past and current records of whatever nature, regarding a party’s physical, mental, or emotional health or drug or alcohol condition relevant to child custody, visitation, adoption, or termination of parental rights.  Upon a hearing in chambers, a judge, in the exercise of discretion, may order release of such records relevant to the custody, visitation, adoption, or termination action.  The court may order the records sealed.

The hearing in chambers is to determine whether the documents would be relevant to one of the listed proceedings.  The comment to the rule sets out “some factors the court should consider:

  1. Whether the treatment was recent enough to be relevant;
  2. Whether substantive independent evidence of serious impairment exists;
  3. Whether sufficient evidence is available elsewhere;
  4. Whether court-ordered evaluations are an inadequate substitute; and
  5. Whether, given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.

To me, it is significant that the comment describes the foregoing as “some” of the factors that the trial court should consider.  In my opinion, the court should also consider what is the relief sought, the severity of the condition and what its impact on the child could be, and whether the information includes names of witnesses and others who should be interviewed by the guardian ad litem, if any.  The comment factors seem weighted in favor of the patient’s privacy, but I believe the repeal of the privilege in cases such as those listed is a clear indication that the policy is that the privilege should yield to the search for all information that will help inform the court as to what is in the best interest of the child.

In this judge’s opinion, the court should err on the side of making the information available for the reason that it may lead to the discovery of additional information that may bear on the best interest of the child.

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